Schobacher v. Germantown Farmers' Mut. Ins. Co.

• Decision Date: 11 December 1883
• Citation: 17 N.W. 969,59 Wis. 86
• Parties: SCHOBACHER v. GERMANTOWN FARMERS' MUT. INS. CO.
• Court: Wisconsin Supreme Court

59 Wis. 86

17 N.W. 969

SCHOBACHER

v.GERMANTOWN FARMERS' MUT. INS. CO.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Washington county.

This action was brought upon a policy of insurance against fire, issued by the defendant to the plaintiff for $300 on his dwelling-house, $40 on his furniture, and $60 on his beds, clothes, and linen. The duly-verified amended complaint alleged, in effect, among other things, that the fire occurred January 7, 1878, and the total loss by fire of the dwelling-house, and the damage by fire of the furniture of $53.75 and to the other property $15, and that such losses, respectively, were not more than two-thirds of the actual value of the property insured, and that the plaintiff had duly performed all the conditions of said insurance; and also demanded judgment for $368.75, the aggregate amount of the losses as claimed, with interest thereon from July 28, 1879, and costs. Annexed to this complaint was a copy of the policy. The action was commenced by the service of summons, August 14, 1879. The defendant appeared by attorney, and demanded a copy of the complaint which was served, September 4, 1879. To that complaint the defendant interposed a demurrer for insufficiency, October 13, 1879. Subsequently, the complaint was amended by leave of the court, and service of a copy thereof admitted by the defendant's attorneys, May 15, 1880. November 16, 1880, the plaintiff's attorneys having made affidavit of the defendant's default in not serving an answer or demurrer to the amended complaint, judgment was, on motion of the plaintiff's attorneys, entered, wherein it was adjudged that the plaintiff recover of the defendant the sum of $435, the amount claimed by him, and interest, with * * * dollars costs and disbursements, amounting in the whole to * * * dollars. Dated November 16, 1880, and signed by the clerk. The defendant's attorneys having learned of the entry of the judgment, made and delivered to one of the plaintiff's attorneys, November 23, 1880, an answer to said amended complaint, denying, mostly upon information and belief, several of the allegations thereof, which answer was not verified by any of the officers of the defendant, but only by one of its attorneys. January 6, 1882, the plaintiff's attorneys filed in the record of the cause an express waiver in writing of all costs in the action. March 1, 1882, an execution was issued on the judgment, and on the same day the plaintiff assigned the judgment to Paul A. Weil, which assignment was filed March 3, 1882, and about the same time the execution was returned with $369.50 made and collected thereon, which, except sheriff's fees, was paid over to said Weil, and March 13, 1882, the defendant, by its officer, voluntarily paid the balance of said judgment ($186.67) to the clerk of said court thereon, which was thereupon paid by said clerk over to said Weil. In June, 1882, the defendant gave to the plaintiff's attorneys notice of a motion to be made to the court for an order that said judgment be vacated and set aside, and held for naught; that said Paul A. Weil repay to the defendant the amount that had been collected and paid on the judgment, with interest from March 20, 1882, the same being $455.50; that the defendant have leave to answer, if in default, and that said answer so delivered be allowed to stand as the answer in the case; that the motion would be founded upon the judgment roll, the papers on file in the action, and the affidavits and other papers served with the motion, which affidavits and papers indicated severe sickness on the part of one of the attorneys for the defendant, and a series of mishaps and misunderstandings on the part of the defendant, its officers, agents, and attorneys. The motion subsequently came on to be heard, and the circuit court, by order, denied the same, October 23, 1882, with $10 costs. From that order, and the whole thereof, the defendant brings this appeal.Ross & Hedding and Frisby & Turner, for respondent, Christoph Schobacher.

Geo. W. Foster, for appellant, the Germantown Farmers' Mutual Ins. Co.

CASSODAY, J.

1. It is urged that the amended complaint fails to state a cause of action, because it does not allege that the written notice and proofs of loss were given in the time and in the manner required by the policy. But we cannot treat the judgment as a nullity under the facts here presented for any such reason. In pleading the performance of conditions precedent in a contract under our statute, it is not necessary to state the facts showing such performance, but the same may be stated generally, that the party duly performed all the conditions on his part. Section 2674, Rev. St.; Reif v. Paige, 55 Wis. 502; [S. C. 13 N. W. REP. 473.] This general allegation, under that section, was sufficient to cover notice and proofs of loss. Boardman v. Westchester, etc., Co. 54 Wis. 365; [S. C. 11 N. W. REP. 417.] All conditions subsequentin the policy were matters of defense, and needed not to be negatived in the complaint. McDowell v. Laev, 35 Wis. 172;Redman v. Ætna Ins. Co. 49 Wis. 431; [S. C. 4 N. W. REP. 591;] Cannon v. Home Ins. Co. 53 Wis. 591; [S. C. 11 N. W. REP. 11.] We must, therefore, for the purpose of this motion, at least, treat the complaint as stating a good cause of action.

2. It is urged that, although this is an action arising on contract, yet it is for unliquidated damages, and hence is not “for the recovery of money only,” within the meaning of subdivision 1, § 2891, Rev. St., and that, therefore, the clerk of the court had no authority to enter judgment for the amount demanded in the complaint upon an affidavit of default, notwithstanding the complaint was duly verified. In Garman v. Ball, 18 Wis. 26, it was held “that judgments entered by the clerk in vacation, under the statutes, are to be held and regarded as the judgments of the court; as much so as though entered in term time.” That was an action to recover the price of a reaper and mower, brought upon the contract of purchase. The complaint was not sworn to, and the judgment taken on default before the clerk failed to show an assessment of damages, and it was reversed on writ of error by reason of such failure. But the opinion of PAINE, J.,...